White House moves control of drone TEST
out of Washington FAA Drone AdvisoryCommittee (splinter)
to recommend Federal Preemption

A UAS, a/k/a drone, flying over 1600 Pennsylvania, violates the FAA’s Prohibited Airspace Regulations[see above photograph]. The President directing the Secretary to initiate a “test’ for drones, including the devolution of authority to states [see article 1. below]. A Federal Advisory Committee meeting and excluding members appointed to participate in Task Group 1 of the Drone Advisory Committee, may or may not violate the Act enacted to assure that its deliberations are fair and in the public interest. [see article 2. below]Task Group 1 exclusive cadre is seeking to consolidate all drone rules with the FAA; they are opposed to a “patchwork” of thousands of local regulations would snuff out the promising commercial drone industry [see ¶3 below].The Washington Post article on the POTUS- DOT Secretary announcement points to Michael Kratsios of the White House Office of Science and Technology Policy as the author of this new initiative and he explains that the goal is to move the decision making, for this test to authorities other than the FAA. This is known as “devolution” and it is a policy favored by libertarianthinktanks. [see article 4. below]

So, there is a Federal Advisory Committee working to recommend (not yet complete) that a single federal regulation be retained for consistency; their view is by allowing states and cities to enact their own rules thereby creating balkanization. Their voice may be muted by the exclusion of same. Their message appears to have already been ignored by the White House Office of Science and Technology Policy.

Federal preemption is a complex legal doctrine (express, implied, conflict and field) and courts are loathe to find that the supremacy clause denies local control. There is significant litigation over the FAA’s power to prohibit local governments from restricting airport operations and to locate air traffic routes. “experimenting” with devolution of UAS regulation to cities and states may well give litigants and judges cause to limit and/or ignore the FAA existing powers with major consequences, unintended or otherwise.

Creating drone policy by the White House may be VERY RISKY.

1.

WASHINGTON – President Donald J. Trump directed U.S. Secretary of Transportation Elaine L. Chao today to launch an initiative to safely test and validate advanced operations for drones in partnership with state and local governments in select jurisdictions. The Unmanned Aircraft Systems (UAS) Integration Pilot Program implements a directive signed by President Trump today, and the results will be used to accelerate the safe integration UAS into the national airspace and to realize the benefits of unmanned technology in our economy.

The program will help tackle the most significant challenges in integrating drones into the national airspace while reducing risks to public safety and security. The program is designed to provide regulatory certainty and stability to local governments and communities, UAS owners and operators who are accepted into the program. In less than a decade, the potential economic benefit of integrated unmanned aerial systems into the nation’s airspace is estimated to equal up to $82 billion and create up to 100,000 jobs.*

The program will help the USDOT and FAA develop a regulatory framework that will allow more complex low-altitude operations; identify ways to balance local and national interests; improve communications with local, state and tribal jurisdictions; address security and privacy risks; and accelerate the approval of operations that currently require special authorizations.

“This program supports the President’s commitment to foster technological innovation that will be a catalyst for ideas that have the potential to change our day-to-day lives,” said Secretary Chao. “Drones are proving to be especially valuable in emergency situations, including assessing damage from natural disasters such as the recent hurricanes and the wildfires in California.”

The pilot program will evaluate a variety of operational concepts, including night operations, flights over people, flights beyond the pilot’s line of sight, package delivery, detect-and-avoid technologies, counter-UAS security operations, and the reliability and security of data links between pilot and aircraft. Industries that could see immediate opportunities from the program include commerce, photography, emergency management, precision agriculture, and infrastructure inspections and monitoring.

“Stakeholders will have the opportunity through this program to demonstrate how their innovative technological and operational solutions can address complex unmanned aircraft integration challenges,” said FAA Administrator Michael Huerta. “At the same time, the program recognizes the importance of community participation in meaningful discussions about balancing local and national interests related to integrating unmanned aircraft.”

Prospective local government participants should partner with the private sector to develop pilot proposals.

2.

A government advisory group has been holding confidential meetings to shape U.S. policy on drones, deliberating privately about who should regulate a burgeoning industry that will affect everything from package delivery to personal privacy.

The federal group includes industry insiders with a financial stake in the outcome and is co-chaired by a lobbyist for DJI, a Chinese drone maker that dominates the U.S. market. In January, the Federal Aviation Administration asked the group to figure out what influence state and local governments should have over drones in their communities.

The closed proceedings are billed as a way to promote thoughtful and unguarded exchanges — and eventual consensus — among government, community and industry interests. Instead, the process has been riven by suspicion and dysfunction, according to internal documents and emails obtained by The Washington Post, and interviews with participants.

….

The group — formally known as Task Group 1 of the Drone Advisory Committee — is now teetering. Months of tensions came to a head recently when an FAA contractor that manages the group told members they had to sign a far-reaching confidentiality agreement to keep participating.

After some raised concerns, several groups were blocked from receiving draft documents meant to represent their own “common ground” positions, emails show.

“Please do not distribute this material to other TG1 members,” an executive from the FAA contractor wrote in an email.

In response to this and other issues, John Eagerton, chief of Alabama’s aeronautics bureau and a co-chair of the group; San Francisco Mayor Edwin M. Lee (D); a representative of the University of Oklahoma; the National League of Cities; the National Association of Counties; and the National Conference of State Legislatures emailed a “statement of dissent” to other group members last month.

“Despite good faith efforts to engage in Task Group 1, many of us have been obstructed from meaningful participation and we all have serious concerns about the recommendations included in the draft reports,” they wrote.

Melanie Sloan, a former federal prosecutor and senior adviser for the accountability group American Oversight, said the closed-door approach appears to violate open-meetings provisions of the Federal Advisory Committee Act.

…

In a statement, the FAA said the act requires that a committee’s recommendations, and the meeting where they are presented to the FAA, be public. But it said there is a legal distinction between a “committee” and a subcommittee or task group. Lower-level panels generally “keep their conversations confidential to encourage open discussions and debate among the members,” it said.

…

The policy issue at the heart of the discord is whether Washington should cede localities the power to regulate when, where and under what conditions drones can fly. Cities and states generally are prohibited by federal law from doing so, although there are exceptions, according to the FAA.

The FAA says measures such as altitude restrictions and flight bans are under its control. But local and state governments have long-standing “police powers,” so banning voyeurism using drones or requiring police to get a warrant for overhead surveillance are appropriate for a city or state lawmakers, it says.

That leaves a lot of gray.

The Trump administration is preparing to launch “a pilot program designed to let local communities try different regulatory concepts for controlling drone activity,” Transportation Secretary Elaine Chao told a drone conference in Fargo, N.D., in May.

Details of the pilot program could be disclosed soon. {SEE ABOVE}

Task Group 1 was assigned a difficult and high-pressure job, said Dan Elwell, who advised Chao on aviation and is now FAA deputy administrator.

The FAA “gave them the ocean and said, ‘Boil it,’” Elwell said. But it is not the agency’s role to manage the inner workings of the advisory group, he said. “We let them do their thing. If we meddle, if we get in there, they’re not advising us.”

The deliberations have at times been ugly.

“This process feels like a sham, and highlights the fact that this is the full time job for the industry lobbyists, while the rest of us, myself included, have other jobs,” wrote James L. Grimsley, director of the Center for Applied Research & Development at the University of Oklahoma, and a member of the task group.

…

Grimsley was not alone in focusing on Schulman. Margaret Jenny, the president of RTCA, Inc., the contractor that oversees the task group for the FAA, sought unsuccessfully this year to oust Schulman from his role as co-chair. She wrote that her rationale was “to decrease the chance that the final product could be questioned.”

…

Some cities have jumped into the breach to test federal limits.

…

Having a single, clear authority over the nation’s airspace has for decades generally been viewed as a good thing, both for commerce and the safety of the flying public. But millions of drones have now been sold, and they look to become more pervasive.

“Really, the crux of this is: How do we allow a fascinating and very useful and worthwhile technology to grow safely and with the proper level of oversight and security?” the FAA’s Elwell said. “We have to be very, very careful not to be so burdensome that it stifles the industry and it goes out of our borders to find success — or to be so sort of laissez-faire with it that we end up with unintended consequences.”

Some in Congress, including Sen. Dianne Feinstein (D-Calif.), have sought to guarantee that local and state governments have power to impose “reasonable restrictions” on drones below 200 feet, or within 200 feet of a structure.

That could include limits or bans on flights near public or private property and to protect privacy or lessen noise pollution, according to Feinstein’s Drone Federalism Act.

¶3. Industry advocates say that allowing a “patchwork” of thousands of local regulations would snuff out the promising commercial drone industry. The Association for Unmanned Vehicle Systems International and the Consumer Technology Association, both members of Task Group 1, filed a court brief opposing the law in Newton.

Drone industry representatives, meanwhile, have sought federal legislation further limiting what states are allowed to regulate and have pushed states to enact their own “preemption” laws preventing their cities or counties from regulating drones.

“Rhode Island is a small place. You don’t want to shut the door to a new technology,” said Stephen Ucci, a state legislator and member of Task Group 1 who supported the state’s preemption law so there would be “one uniform standard” for a technology that is both promising and polarizing.

…

Jenny, in a Sept. 22 email circulating among some members, said organizers should “stand down” Task Group 1 and give its materials to a “newly constituted group” with a new mandate.

“I’m not willing to continue down this painful path that cannot lead to a good outcome with an unbalanced group,” she wrote.

4.

WASHINGTON — Some Americans could see a lot more drones flying around their communities as the result of a Trump administration test program to increase government and commercial use of the unmanned aircraft.

President Donald Trump gave the go-ahead Wednesday, signing a directive intended to increase the number and complexity of drone flights.

The presidential memo would allow exemptions from current safety rules so communities could move ahead with testing of drone operations.

States, communities and tribes selected to participate would devise their own trial programs in partnership with government and industry drone users. The administration anticipates approving at least five applications, but there is no limit on the number of communities that can join.

The Federal Aviation Administration would review each program. The agency would grant waivers, if necessary, to rules that now restrict drone operations. Examples include prohibitions on flights over people, nighttime flights and flights beyond the line of sight of the drone operator.

Among the things that could be tested are package deliveries; the reliability and security of data links between pilot and aircraft; and technology to prevent collisions between drones and other aircraft and to detect and counter drones flying in restricted areas.

The trial program will collect data on drone operations that will aid the government’s effort to develop a separate air traffic control system for low-flying unmanned aircraft, Michael

Michael Kratsios

Kratsios{see his background}of the White House Office of Science and Technology Policy told reporters in a conference call. Ultimately, the information is intended to be used to more generally expand drone flights around the country.

The test zones are expected to start going into place in about a year. The program would continue for three years after that.

The program is intended “to foster technological innovation that will be a catalyst for ideas that have the potential to change our day-to-day lives,” said Transportation Secretary Elaine Chao. She noted that drones have proven to be an especially valuable tool in emergency situations, including assessing damage from natural disasters such as the recent hurricanes and the wildfires in California.

Drone-makers and businesses that want to fly drones have pushed for looser restrictions. Trump discussed the issue with industry leaders at a White House meeting in June.

…

Safety restrictions on drone flights have limited drone use, and U.S. technology companies seeking to test and deploy commercial drones have often done so overseas. For example, Google’s Project Wing is testing drones in Australia, and Amazon is testing drone deliveries in the United Kingdom.

“In order to maintain American leadership in this emerging industry here at home, our country needs a regulatory framework that encourages innovation while ensuring airspace safety,” Kratsios said.

Safety concerns over drones have risen recently after the collision of a civilian drone and an Army helicopter over Staten Island, New York, and the first verified collision in North America between a drone and a commercial aircraft, in Quebec City, Canada.

The test program doesn’t address complaints by local governments that low-flying drones present safety, privacy and nuisance risks. The FAA says it has the sole authority to regulate the national airspace, but some communities have passed their own restrictions.

The test program “doesn’t go far enough in protecting local control and the rights to privacy and property,” said Rep. Jason Lewis, R-Minn. He has introduced a bill to give local governments more control over drones flying under 200 feet.

But Doug Johnson, vice president of technology policy at the Consumer Technology Association, said the test program recognizes that “the federal government cannot manage policymaking and enforcement by itself” and must work with local governments.

“Public-private partnerships like those that would be created by the program are critical to realizing the economic benefits of drones,” he said.

The association, whose members include drone-makers, has estimated 3.4 million drones will be sold in the U.S. this year, 40 percent more than last year. Revenue from those sales is estimated at about $1.1 billion.

___

Follow Joan Lowy on Twitter at http://www.twitter.com/AP_Joan_Lowy

Copyright 2017 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.